Truth in Justice Files is the editorial adjunct to Truth in Justice, the organization and website founded to educate the public about the criminal conviction of wholly innocent people. The website is at www.truthinjustice.org.

Saturday, March 21, 2009

The following opinion was originally published in the Los Angeles Times on March 20, 2009.

Solving crimes using fingerprints is an inexact scienceAlthough it is accepted that prints are unique, courts continue to have questions about using them to make IDs.

By Jason Felch

March 20, 2009

When Thomas and Ann Farrow were found murdered in their paint shop, their heads crushed with a blunt object, the only clue was a bloody right thumbprint on the store's empty cash box.

The brazen murder shocked the people of Debtford, a sooty industrial suburb of London. They clamored for police to find the killer.

The year was 1905. Forensic science was in its infancy. Scotland Yard had only recently begun collecting carefully pressed fingerprints from criminals, stashing the cards in pigeonholes of a makeshift filing system.

But Scotland Yard Inspector Charles Collins believed that the bloody print could help him solve his crime. After learning that a man named Alfred Stratton had been seen near the crime scene, he collected the unemployed ruffian's thumbprint and compared it with the one left at the crime scene. A close inspection showed there were 11 minute features that the two prints shared.

The prosecutor at Stratton's trial told jurors the similarities left "not the shadow of a doubt" that the crime-scene print belonged to Stratton.

But the defense had a surprising ally at their table: Henry Faulds, a Scottish doctor who two decades earlier was the first to propose using fingerprints to solve crimes.

Faulds believed that even if fingerprints were unique -- there was, after all, no scientific basis for the popular assumption -- the same was not necessarily true of "smudges," the blurry partial prints accidentally left behind at crime scenes in blood, sweat or grease.

A single bloody thumbprint, he felt, was not enough evidence to convict anyone of murder.

Stratton's trial would be the first test of the new science of fingerprinting, and it raised concerns that, more than a century later, still have not been addressed.

Today, fingerprints are once again on trial.

In 2007, a Maryland judge threw out fingerprint evidence in a death penalty case, calling it "a subjective, untested, unverifiable identification procedure that purports to be infallible."

The ruling sided with the scientists, law professors and defense lawyers who for a decade had been noting the dearth of research into the reliability of fingerprinting. Their lonely crusade for sound science in the courtroom has often been ignored by the courts, but last month it was endorsed by the prestigious National Academy of Sciences.

The question is not whether fingerprints are unique -- most scientists agree they probably are, though that assumption remains largely unstudied. The issue is whether the blurry partial prints often found at crime scenes -- what Faulds called "smudges" -- are sufficient to identify someone with any reliability.

The answer: No one knows. There are no national standards for declaring a fingerprint "match." As a result, fingerprint identifications are largely subjective.

For ages, people have marveled at the immutable ridges, arches, loops and whorls embedded in every fingertip. Believing them unique, ancient Babylonians pressed their fingers into wet clay tablets to sign legal contracts.

But it was not until the 1880s that Faulds discovered their utility as a forensic tool. He had begun cataloging the curious impressions when someone stole alcohol from his laboratory, according to Colin Beavan, the author of a book about Faulds and the Stratton trial. Faulds used the fingerprints left on the glass vial to identify the culprit -- the first known use of latent prints to solve a crime.

But by the time of Stratton's trial in 1905, fingerprinting had moved from the realm of scientists to that of police agencies.

Faulds was sitting silently at the defense table, Beavan wrote, stewing bitterly. The limitations of his technique were being ignored.

"The least smudginess in the printing of them might easily veil important divergences ... with appalling results," Faulds wrote in a book that year. Police were "apt to misunderstand or overstrain, in their natural eagerness to secure convictions."

His warnings were ignored. Jurors took just two hours to decide Stratton's fate, with the fingerprint as the only piece of evidence linking him to the crime. He and his brother were hanged 19 days later.

The concerns Faulds raised would go unanswered and largely ignored for decades as fingerprints became definitive proof of identity. What had started as a hypothesis for 19th century scientists became an article of faith for forensic scientists and the courts in the 20th century, says Michael Saks, the author of several articles on the social history of identification sciences.

When fingerprints were first used in an American court in a 1920 Chicago murder trial, a juror told reporters that "fingerprints and fingerprints alone convinced us." Ever since, experts have claimed their power to eliminate any doubt.

That air of certainty soon carried over to other emerging forms of forensic identification. Handwriting, shoe prints, tire tracks, bite marks -- all were asserted to be reliable identifiers, based largely on faith and police experience rather than any rigorous scientific study. Even the hard science of DNA evidence gained credibility in its early days by calling itself "genetic fingerprinting."

Even today, fingerprint experts present their conclusions as nothing short of certainty. Many testify that fingerprinting has an error rate of zero. Few judges have been willing to question such statements, fearful of contradicting a century of legal precedent.

Only recently, with the advent of DNA evidence, have the "appalling results" that Faulds warned of begun to come to light.

In 2004, the Boston Police Department was forced to shut down its fingerprint lab after a "glaring mistake" led to a wrongful conviction. That same year, the FBI's top fingerprint analysts were forced to admit that they were wrong after claiming to be "absolutely confident" that a fingerprint had linked a lawyer in Oregon to the Madrid train bombings. The Los Angeles Police Department is now reviewing nearly 1,000 fingerprint cases after an internal review that found two people had been wrongfully accused by fingerprint "matches."

If the National Academy report succeeds in forcing the courts to ponder questions first raised a century ago, Faulds, who went to his grave in 1930 still angry that the limits of "smudges" were being ignored, might finally rest in peace.

Jason Felch has written extensively about forensic evidence, especially DNA, for The Times. jason.felch@latimes.com

The following opinion was originally published in the Baltimore Sun on March 19, 2009.

A worthy compromise?Yes: Bill is a crucial step in the right direction

By Michael Millemann

March 19, 2009

The Maryland death penalty has been an utter failure by every measure since it was reinstituted in 1978. From 1978 to 1999, the period for which there is detailed information, there were 1,308 homicides eligible for the death penalty. Prosecutors filed death notices in 353 of these cases, and actually sought the death penalty in 180 cases. This produced 76 death sentences. Of these, 62 were reversed, a staggering 82 percent error rate. There were five executions, and five inmates currently are under sentence of death. (Governors commuted two death sentences, and two death-sentenced prisoners died of natural causes.)

Moreover, the death penalty comes with a huge price tag. The resources committed to the death components of homicide prosecutions - of prosecutors, courts, defense counsel and others - are as staggering as the error rate. Indeed, the bitter irony of the Maryland death penalty experience is that, in fact, the death penalty undermines public safety. If we reallocated these resources, for example, to target career offenders who predictably will kill, and to protect children at risk who predictably will be killed, we could save lives.

Senate Bill 279, compromise legislation passed by the state Senate and now before the House of Delegates, is an important step forward. It would limit the death penalty to cases in which there is biological or DNA evidence that links the defendant to murder, a videotaped and voluntary confession, or a video recording that conclusively links the defendant to murder. These measures would help to prevent the execution of innocent people.

That is a serious concern. Despite all of the resources committed to death cases, innocent people still are convicted and sentenced to death. In Maryland, Kirk Bloodsworth is a prime example. The 2008 Maryland Commission on Capital Punishment, chaired by Benjamin R. Civiletti, recommended the repeal of the death penalty. It pointed out that during the last 35 years nationwide, there have been 1,125 executions and 130 exonerations of innocent, death-sentenced persons. Thus, for every 8.7 executions, there has been one exoneration.

This demonstrates what we all know: Human beings are fallible. If a defendant is mistakenly sentenced to life in prison, that mistake can be corrected, but not if the sentence is death and the sentence is carried out.

SB 279 responds to this profound concern. Under the legislation, many homicide cases now prosecuted as capital cases would no longer be death-eligible. The considerable resources now devoted to the death components of these cases could be used to more effectively protect the public and provide services to the families of victims.

Soon, I hope, the General Assembly will repeal the death penalty. It is bad policy as well as bad practice. If it does not, it should deal with other serious problems with the administration of the death penalty that are described in the Civiletti Commission report. These include racial and jurisdictional disparities in how the death penalty is applied.

For the present, however, SB 279 is a critically important step in the right direction.

Michael Millemann, a professor of law at the University of Maryland, represents a death-sentenced inmate in Maryland. His e-mail is mmillemann@law.umaryland.edu.

Sunday, March 15, 2009

The following commentary by Paul Craig Roberts was originally published in The Beacon on March 14, 2009.

The American Criminal Injustice System

Ronald Cotton spent 11 years in prison because Jennifer Thompson provided eyewitness testimony that he was the person who raped her. On March 9, National Public Radio revisited the story.

It turned out that Thompson was completely wrong. DNA evidence indicated that it was not Cotton but another man who had bragged about the rape.

I am familiar with psychological studies that conclude that eyewitness accounts are wrong half of the time. That is enough to discredit eyewitness testimony as evidence – yet police and juries always bank on it.

Rape victims tend to be angry and they want someone to pay. When shown mug shots or a lineup, they tend to pick someone, naively believing that if it is the wrong person the police investigation will clear the person. Witnesses to crimes who are not themselves victims want to be helpful to the police. Consequently, they also tend to deliver up the innocent to justice.

Law and order conservatives think that the only miscarriages of justice are caused by liberal judges and liberal parole boards who can't wait to release dangerous criminals to prey on the public.

The absurd idea that the justice system doesn't make mistakes about those it convicts, except when they are let off by liberals, has made it impossible for innocent people wrongfully convicted to be paroled.

To be paroled, a person must admit to his crime and go through rehabilitation. Of course, only the guilty admit their crimes, and so only the guilty qualify for parole. Innocent people tend to maintain their innocence.

A case in point is that of William R. Strong, who has been locked away for a dozen years or more for "wife rape." According to people familiar with the case, Strong's wife had a boyfriend and wanted rid of her husband. She accused him of rape. This was prior to DNA testing, but the perp kit still exists.

Strong comes from a patriotic military family. His father was a colonel, and Strong served as a lieutenant and has two college degrees. The family trusted America and the police and the justice system. When advised that Strong would be out in a year if he agreed to a plea bargain, the family, beset with troubles, pressured Strong to accept the deal.

The judge, seeking women's support, gave Strong 60 years.

That should be enough to wreck marriage in America, or for that matter, heterosexual sex unless there is a signed contract prior to each act.

The American criminal justice system is incapable of admitting that it makes mistakes. The criminology bureaucrats claim that those inmates who proclaim their innocence are in denial and, thus, cannot be rehabilitated and, therefore, remain dangerous. In truth, it is the bureaucrats who are in denial and constitute a danger to justice.

The criminal justice system has nothing to do with justice. It is a massive producer of injustice. The agenda is to clear court dockets and produce high conviction rates. These high rates are achieved through coerced plea bargains.

Law and order conservatives think of the police in godlike terms as "public defenders." Conservatives could gain more perspective if they watch some of the videos on YouTube of gratuitous police violence, such as one of a police officer delivering a brutal beating to a 15-year-old girl.

Libertarian free-market types believe that the private sector can do everything better than the public sector. This ideology causes libertarians to be blind to the dangerous incentives created by the privatization of prisons. On Feb. 12, CBS News reported that two Pennsylvania judges have been charged with sending kids to privately operated detention centers in exchange for $2.6 million in payoffs. State-operated prisons don't want more inmates. The more inmates, the more the work and the more the risk that a judge will intervene because of overcrowding.

In contrast, private jails make more money the more inmates they have.

Just think of all the kids whose lives have been ruined by the greedy judges and private prison operators. The judges have been sentenced to seven years on reduced-charge plea bargains.

But what about the private prison operators who paid the bribes to have the kids sentenced? Shouldn't they be put away for life?

The United States has the highest incarceration rate and the biggest prison population of any country in the world. With 5 percent of the world's population, the United States has 25 percent of the world's prison inmates. Recent research by the Pew Center concludes that one in every 31 Americans is in prison or jail or on probation or parole.

Many of Mr. Roberts' commentaries on the criminal justice system have been reposted at Truth in Justice and remain available to readers at our website. These can generally be accessed from the main section page for How the System Works. You can also locate his commentaries by using the search engine on the main page to find Paul Craig Roberts.

About Me

Truth in Justice Files is the editorial adjunct to Truth in Justice, the organization and website founded to educate the public about the criminal conviction of wholly innocent people. Members of the Board of Directors are Sheila Berry, Doug Berry, Ira Robins, Martin Yant, and Dennis Fritz